张庆方律师：昌图刘振国强迫交易案，申请回避环节打休庭了 In the Second Trial of Changtu Liu Zhenguo's Forced Trading Case, Court Adjourned During the Recusal Request Phase

我和何兵教授辩护的昌图刘振国强迫交易、毁坏财物、故意伤害、开设赌场案，今天在辽宁省朝阳市中级人民法院二审。

Professor He Bing and I defended Changtu Liu Zhenguo in his case of forced trading, property destruction, intentional injury, and running a gambling establishment at the second trial held in the Intermediate People's Court of Chaoyang City, Liaoning Province today.

开庭通知中写明了上午九点半开庭，我们几个辩护人在辩护席上一直等到10:35，审判长才姗姗来迟。

The court notice stated that the hearing would start at 9:30 AM, but we, the defense attorneys, waited until 10:35 AM before the presiding judge finally arrived.

后来我们得知，就在辩护人等待期间，审判长正在法院外的候审室挨个问被通知来的十几个强迫交易罪“被害人”：刘振国是不是强迫交易你了，你愿意不愿意出庭？好多所谓的“被害人”当场回答：刘振国没有强迫过我。审判长问：你愿意上法庭说明情况吗?答：去就去呗。

Later, we learned that while we were waiting, the presiding judge was outside the courtroom, in the waiting room, questioning several notified victims of the forced trading crime one by one: "Did Liu Zhenguo force you into trading, and are you willing to testify?" Many so-called "victims" responded on the spot, "Liu Zhenguo never forced me." When asked by the judge if they were willing to explain the situation in court, they replied nonchalantly, "Sure, I'll go."

审判长庭下接触“被害人”的全过程，均被来旁听和被告人家属和律师助理目睹。

The presiding judge's interactions with the "victims" outside the court were witnessed by observers, the family of the defendant, and legal assistants.

宣布开庭后，审判长直接宣布：法院通知的被害人，因为身体原因，都不愿意出庭。审判长的态度和决定，让何兵律师非常不满。

After the court was called to order, the presiding judge immediately announced that the notified victims were unwilling to appear due to health reasons. This attitude and decision greatly dissatisfied Attorney He Bing.

何兵律师问审判长：这个案子，起诉书中从未列明被害人有多少，谁是被害人？一审判决中，也没有明确被害人名单。现在二审了，法庭直接宣布被害人不能出庭，请审判长明确你们认定的被害人有哪些，他们每个人不出庭的具体理由是什么？

Attorney He Bing questioned the presiding judge: "In this case, the indictment never specified how many victims there were, or who they were. The first trial verdict also did not clarify the list of victims. Now, at the second trial, the court directly declared that the victims cannot appear. Could the presiding judge please clarify who you have identified as the victims and the specific reasons why each of them cannot appear?"

审判长说：依据法律规定，被害人可以处置自己的诉讼权利，他们不出庭的理由，合议庭已经核实过了，核实过程和笔录不需要在法庭上公开。

The presiding judge responded: "According to legal provisions, victims can dispose of their litigation rights. The reasons for their absence have been verified by the panel, and the verification process and records do not need to be made public in court."

审判长的解释让刘振国的两位辩护人更加不满，申请回避环节，何兵律师直接请审判长回避，理由是：被害人是刑事诉讼中的当事人，审判长在庭下私自接触被害人，属于和本案当事人有其他关系的法定回避理由。张庆方律师补充说：作为一个强迫交易案，这个案子在一审立案审查环节，就属于不符合受理条件的。

The presiding judge's explanation only increased the dissatisfaction of Liu Zhenguo's two defense attorneys, leading to a recusal request. Attorney He Bing directly requested the judge's recusal, arguing that since victims are parties in criminal proceedings, the judge's private interactions with them constituted a statutory reason for recusal due to other relations with parties in the case. Attorney Zhang Qingfang added that as a forced trading case, this case should not have been accepted during the initial filing and review phase of the first trial.

首先，本案起诉书缺乏法定必备内容“被害人姓名、住址、联系方式”，应发回一审法院，由北票检察院变更起诉。人民检察院刑事诉讼规则第三百五十九条规定：人民检察院提起公诉的案件，应当向人民法院移送起诉书、案卷材料、证据和认罪认罚具结书等材料。

First, the indictment lacks the legally required information such as the names, addresses, and contact details of the victims, and should be returned to the first instance court for amendment by the Beipiao Procuratorate. Article 359 of the Criminal Procedure Rules of the People's Procuratorate stipulates that in cases brought by the procuratorate, the procuratorate shall transfer to the court the indictment, case files, evidence, and confessions along with other materials.

起诉书应当一式八份，每增加一名被告人增加起诉书五份。

The indictment should be made in eight copies, with an additional five copies for each added defendant.

关于被害人姓名、住址、联系方式、被告人被采取强制措施的种类、是否在案及羁押处所等问题，人民检察院应当在起诉书中列明，不再单独移送材料；对于涉及被害人隐私或者为保护证人、鉴定人、被害人人身安全，而不宜公开证人、鉴定人、被害人姓名、住址、工作单位和联系方式等个人信息的，可以在起诉书中使用化名。但是应当另行书面说明使用化名的情况并标明密级，单独成卷。

Regarding the names, addresses, and contact details of the victims, the type of coercive measures taken against the defendant, whether they are part of the case, and the place of detention, the procuratorate must specify these in the indictment and not transfer them separately. For matters involving the privacy of the victims or to protect the personal safety of witnesses, experts, and victims, pseudonyms may be used in the indictment for these individuals. However, there must be a separate written explanation for the use of pseudonyms and their classification, compiled into a separate volume.

最高人民法院关于适用《中华人民共和国刑事诉讼法》的解释（2021）第二百一十八条规定：对提起公诉的案件，人民法院应当在收到起诉书（一式八份，每增加一名被告人，增加起诉书五份）和案卷、证据后，审查以下内容：是否属于本院管辖；是否列明被害人的姓名、住址、联系方式；是否附有证人、鉴定人名单；是否申请法庭通知证人、鉴定人、有专门知识的人出庭，并列明有关人员的姓名、性别、年龄、职业、住址、联系方式；是否附有需要保护的证人、鉴定人、被害人名单；当事人已委托辩护人、诉讼代理人或者已接受法律援助的，是否列明辩护人、诉讼代理人的姓名、住址、联系方式；可见，本案起诉书没有列明被害人名单和地址，违反了刑事诉讼法和相关司法解释的规定。

The Supreme People’s Court’s interpretation of the "Criminal Procedure Law of the People's Republic of China" (2021) Article 218 specifies that when a public prosecution case is initiated, the People's Court must review the indictment (in eight copies, with an additional five copies for each defendant added) and case files, and evidence, to determine the following: whether it falls under the court's jurisdiction; whether the victims’ names, addresses, and contact details are listed; whether lists of witnesses and experts are attached; whether there are requests for the court to summon witnesses, experts, or persons with specialized knowledge, and list their names, gender, age, profession, address, and contact information; whether there is a list of witnesses, experts, and victims who need protection; and whether the names, addresses, and contact details of appointed defense attorneys or legal representatives or those who have received legal aid are listed. Clearly, this case’s indictment failed to list the victims’ names and addresses, violating the criminal procedural law and relevant judicial interpretations.

第二，本案一审判决没有附被害人名单及损失数额，不让被害人作为当事人出庭，将导致案件事实和金额不清，日后被害人无法参与执行程序，其损失无法通知刑事执行程序得到补偿，也为法院对涉案财产上下其手提供了空间，因此应发回一审法院重审。

Secondly, the first trial’s verdict in this case did not include a list of the victims and the amount of losses. Preventing the victims from appearing as parties has led to unclear case facts and amounts. Consequently, the victims are unable to participate in the enforcement proceedings, their losses cannot be communicated for compensation during criminal execution, and this has provided opportunities for the court to mishandle the involved properties. Therefore, the case should be sent back to the first-instance court for retrial.

最高人民法院《关于刑事裁判涉财产部分执行的若干规定》第6条规定：刑事裁判涉财产部分的裁判内容，应当明确、具体。涉案财物或者被害人人数较多，不宜在判决主文中详细列明的，可以概括叙明并另附清单。判处没收部分财产的，应当明确没收的具体财物或者金额。判处追缴或者责令退赔的，应当明确追缴或者退赔的金额或财物的名称、数量等相关情况。

Article 6 of the Supreme People’s Court "Several Provisions on the Execution of Criminal Judgments Involving Property" stipulates: The content of criminal judgments involving property must be clear and specific. If there are many involved properties or a large number of victims which are impractical to list in detail in the main text of the judgment, a summary can be provided along with an attached list. For properties to be confiscated, the specific properties or amounts to be confiscated must be clearly stated. For properties to be recovered or ordered for restitution, the amounts or the names, quantities, and other relevant details of the properties to be recovered or restituted must be clearly specified.

本案一审判决中没有查明被害人范围和损失数额，这个问题，是二审纠正，还是发回一审纠正?现在，二审法院不但没有纠正的表现，反而庭下找被害人，并违背他们的真实意思，直接决定不让他们出庭。这是对刑事诉讼法和最高法院适用刑诉法的司法解释的公然违反，这不能不让辩护人对二审审判是不是具备公正审理本案的基本法律素养产生怀疑。而庭下接触被害人，让被害人对是否受到刘振国强迫和是否出庭表态，又违反被害人的真实意思当庭做出与事实不符的宣布，这属于法律规定的与本案当事人有其他关系就当回避的情形。

The first trial's judgment failed to determine the scope of the victims and the amount of their losses. Should this issue be corrected during the second trial or sent back to the first trial for correction? Currently, the second trial court has not only shown no sign of making corrections, but it has also sought out victims outside the courtroom and against their true intentions, directly decided that they should not appear in court. This flagrant violation of the Criminal Procedure Law and the judicial interpretations of the Supreme Court inevitably raises doubts among the defense attorneys about whether the second trial possesses the basic legal competence to fairly adjudicate this case. Furthermore, the presiding judge's off-court contact with the victims, asking them whether they were coerced by Liu Zhenguo and about their willingness to appear in court, and then making a court announcement contrary to the victims' true intentions, falls under the legal stipulation that requires recusal when having other relationships with the parties involved in the case.

面对两位辩护人提出的回避申请，审判长只好宣布休庭，并在十分钟后宣布法院需要时间回复辩护人的回避申请，当天的庭审取消，下次开庭时间加行通知，并让两位辩护人进一步提供书面回避申请理由。

Faced with the recusal requests made by the two defense attorneys, the presiding judge had no choice but to adjourn the court. Ten minutes later, it was announced that the court needed time to respond to the defense attorneys' recusal requests. The trial scheduled for that day was canceled, with a notification of the next hearing date to be provided later, and the two defense attorneys were asked to further submit written reasons for their recusal request.